Thursday, 29 November 2007

Opposition to post-conviction DNA testing has always baffled me. Literally, what has anyone to lose? If the Defendant is guilty absolute proof will impact on the chance of relief at clemency or on “appeal;” indeed lingering doubt is often a reason FOR clemency or a grant of relief. As formerGov. Mike Huckabee recently noted,”[t]he death penalty is the only decision that I make as a governor that is totally irrevocable. Once an execution is carried out, a life has ended.”

Apparently not everyone feels the same way. Tommy Arthur is slated to be killed next Thursday in Alabama. Today the Birmngham News calls on Alabama Gov. Bob Riley to perform DNA testing to assure his guilt lest he kill the wrong guy.

Had the technology existed at the time of his trial, surely DNA tests would have been conducted on the evidence, which includes hair and semen. It’s routinely used now on the front end of criminal cases to confirm guilt or to eliminate suspects.

It boggles the mind, then, that the state of Alabama won’t order DNA tests before proceeding to execute Arthur on Dec. 6.

True, the U.S. Supreme Court this week denied Arthur’s legal bid for DNA testing. But the courts are bound by legal timelines and rules. We may not always like those constraints, but at least we can see the reasoning behind the decision.

Gov. Bob Riley is under no such rules. He can order DNA testing in this case, and there’s no good reason for him not to do it.

In Florida, on a similar note, is Thomas Overton v. State where today the state Supreme Court goes to extraordinary length to deny DNA testing of hair evidence. Counsel for Overton wants to examine whether the tape that had been used to bind the victim contains any hair evidence, presumably of the victim and perpetrator. Rather than order testing of the tape the Overton Court goes out of its way to create a scenario, however implausible, where DNA could be recovered that wasn’t the perpetrator’s or victim’s.

Like I said, opposition to post-conviction DNA testing has always baffled me, today, is no different. The Innocence Blog has more.

[Update 1040PM] I should note the Ninth Circuit in United States v. Kriesel on Thursday upheld the 2004 expansion of DNA testing to persons convicted of a crime in federal court. The prior law limited DNA testing primarily violent federal felonies.